Just because the Arkansas History Commission ruled the Confederate flag is historic and a part of a past Fort Smith flag display at Riverfront Park does not mean the flag needs to fly there again, a judge has ruled.
That was the decision from Sebastian County Judge Gunner Delay Tuesday in a hearing over whether the Confederate flag should be returned to the park where a Fort Smith attorney thinks it should be.
Attorney Joey McCutchen previously sued the City of Fort Smith for removing the flag from Riverfront Park.
The flag was taken down in 2020 before the state legislature passed the historic monument act in 2021, Delay said.
Since the flag was removed, and the city has no plans to return it to the park, there is nothing in state law the requires it to be returned to the park, Delay said.
The state law does not grant the court authority to return the monument, Delay said.
"I can't legislate from the bench," Delay said
The City of Fort Smith requested a waiver from the state law after McCutchen filed the lawsuit against the city, but the Arkansas History Commission denied the waiver, as stated in a Sept. 13, 2022 letter, Delay said. But there is no order to return the monument, he said.
McCutchen did not attend the hearing Tuesday. His office was represented by attorney Stephen Napurano. Attorney Colby T. Roe represented the City of Fort Smith at the hearing Tuesday morning.
McCutchen previously stated the flag should be returned to the park since the waiver was denied by the history commission.
McCutchen also asked Sebastian County Prosecuting Attorney Daniel Shue to charge Fort Smith City Administrator Carl Geffken with a misdemeanor because the flags had been removed from the park.
Shue declined to file any kind of charge, and said the hearing Tuesday would decide the issue over whether the flag should fly again at the park.
The hearing Tuesday was set to "make it crystal clear," what the status of the monument is, Delay explained.
The Confederate flag at Riverfront Park was part of a display called, "Flags Over Fort Smith." that included seven flags of governments in Arkansas from 1699 to 2001, including flags of France, Spain, the United States and Confederacy.
Napurano argued the the intent of the lawsuit against the city was to preserve the state act and protect the monument.
This article originally appeared on Fort Smith Times Record: Confederate flag won't fly at Riverfront Park in Fort Smith